Immigration – Focus on Regulationhttps://www.hlregulation.com
Thu, 23 May 2019 23:42:36 +0000en-UShourly1https://wordpress.org/?v=4.9.10Travel Ban Update: Appeals Court Upholds Temporary Halt on Enforcementhttps://www.hlregulation.com/2017/02/10/travel-ban-update-appeals-court-upholds-temporary-halt-on-enforcement/
Fri, 10 Feb 2017 18:13:47 +0000http://www.hlregulation.com/?p=9254On February 9, 2017, the U.S. Court of Appeals for the Ninth Circuit issued an order denying the Federal Government’s emergency motion for a stay of the district court order temporarily pausing enforcement of the travel restrictions imposed by Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States.” As we

]]>On February 9, 2017, the U.S. Court of Appeals for the Ninth Circuit issued an order denying the Federal Government’s emergency motion for a stay of the district court order temporarily pausing enforcement of the travel restrictions imposed by Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States.” As we reported in our January 30 and February 6 alerts, this Executive Order (1) blocks the entry to the U.S. of aliens from seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) for 90 days, (2) suspends the United States Refugee Admissions Program for 120 days, and (3) halts indefinitely the entry of all Syrian refugees. Given the Ninth Circuit’s decision, enforcement of the Order is suspended while litigation continues.

Yesterday’s ruling was unconventional in that oral arguments were held over the phone only two days before. These arguments attracted an exceptionally large live audience via cable news networks and websites like YouTube. The YouTube livestream alone received over 135,000 listeners as Judges Richard R. Clifton, William Canby, and Michelle T. Friedland heard oral arguments by August Flentje, Special Counsel to the U.S. Attorney General, and Noah Purcell, Washington State’s Solicitor General.

A key component of yesterday’s ruling is the court’s disagreement with the Trump administration over the reach of the Fifth Amendment’s Due Process Clause, which the court determined applies to “certain aliens attempting to re-enter the United States.” The ruling also expresses concern over “the government’s shifting interpretations of the executive order” and the potential for more changes in how the order is enforced. Moreover, the ruling notably calls into question the government’s argument of the urgent necessity of the ban. Also contrary to the administration’s position, the court held firm in stating that it is within its power to review presidential actions like this, even in the case of national security concerns.

The countrywide temporary restraining order issued by Judge James Robart of the United States District Court for the Western District of Washington remains in effect without an expiration date, and individuals targeted by the order remain free to travel until further notice. However, if the travel ban is reinstituted while individuals subject to the Executive Order are outside of the country, they may not be able to return. The case of Washington v. Trump remains pending in the Seattle court. The Federal Government could now ask for emergency intervention from a larger Ninth Circuit panel or the U.S. Supreme Court, but a full court decision on the legality of the Executive Order will likely take many months and a number of appeals.

Nicholas Sparks, in our International Trade and Investment Group, contributed to this post.

]]>On 25 February 2015, the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) published its final rule, effective 26 May 2015, extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants seeking employment-based lawful permanent resident (LPR) status, who meet certain conditions related to that LPR process. This is a significant change, as H-4 spouses previously were not eligible to work in the United States at all. The change in the regulations seeks to attract and retain highly skilled foreign workers by alleviating personal and economic strains during the transition to LPR status. However, please note that this employment authorization does not extend to all H-4 spouses.

]]>Immigration Newletter – Department of Homeland Securityhttps://www.hlregulation.com/2014/12/18/immigration-newletter-department-of-homeland-security/
Thu, 18 Dec 2014 16:52:36 +0000http://www.hlregulation.com/?p=7229Due to the Ebola outbreak in West Africa, qualified nationals or habitual residents of Liberia, Guinea, and Sierra Leone living in the United States may apply to remain in the United States for at least 18 months under the Department of Homeland Security (DHS) Temporary Protected Status (TPS) program. The designations of Liberia, Guinea, and

]]>Due to the Ebola outbreak in West Africa, qualified nationals or habitual residents of Liberia, Guinea, and Sierra Leone living in the United States may apply to remain in the United States for at least 18 months under the Department of Homeland Security (DHS) Temporary Protected Status (TPS) program. The designations of Liberia, Guinea, and Sierra Leone are effective as of 21 November 2014, and the initial registration period for TPS runs from 21 November through 20 May 2015. Once granted TPS, an individual is not removable from the United States, can obtain an employment authorization document (EAD), may be granted travel authorization, and cannot be detained by DHS on the basis of his or her immigration status in the United States.

]]>SEVP Releases Draft Policy Guidance on Conditional Admission for International Studentshttps://www.hlregulation.com/2014/08/06/sevp-releases-draft-policy-guidance-on-conditional-admission-for-international-students/
Wed, 06 Aug 2014 15:31:56 +0000http://www.hlregulation.com/?p=6648On 11 July 2014, the Student and Exchange Visitor Program (SEVP), a division of the U.S. Immigration and Customs Enforcement office of the U.S. Department of Homeland Security, posted a second round of draft policy guidance on conditional admission. The draft policy guidance clarifies that schools may issue a Form I-20 “Certificate of Eligibility for

]]>On 11 July 2014, the Student and Exchange Visitor Program (SEVP), a division of the U.S. Immigration and Customs Enforcement office of the U.S. Department of Homeland Security, posted a second round of draft policy guidance on conditional admission. The draft policy guidance clarifies that schools may issue a Form I-20 “Certificate of Eligibility for Nonimmigrant Student Status” to a prospective F-1 or M-1 student only if the student’s qualifications meet all standards for admission, including English language proficiency requirements.

]]>Department of Homeland Securityhttps://www.hlregulation.com/2013/11/04/department-of-homeland-security/
Mon, 04 Nov 2013 14:57:56 +0000http://www.hlregulation.com/?p=5398Beginning in Fiscal Year 2014, U.S. Citizenship and Immigration Services (USCIS) will now allow those selected through the Diversity Visa lottery to file Forms I-485, Applications to Register Permanent Residence or Adjust Status, to become permanent residents (“green card” holders) before immigrant visas are available to these applicants. This new process will allow more time

]]>Beginning in Fiscal Year 2014, U.S. Citizenship and Immigration Services (USCIS) will now allow those selected through the Diversity Visa lottery to file Forms I-485, Applications to Register Permanent Residence or Adjust Status, to become permanent residents (“green card” holders) before immigrant visas are available to these applicants. This new process will allow more time for USCIS to adjudicate the applications before the end of the fiscal year and will allow certain 2014 Diversity Visa applicants to apply for adjustment of status immediately.

]]>Reminder: Submissions for 2015 Diversity Visa lottery are due by 2 November 2013https://www.hlregulation.com/2013/10/24/reminder-submissions-for-2015-diversity-visa-lottery-are-due-by-2-november-2013/
Thu, 24 Oct 2013 21:40:19 +0000http://www.hlregulation.com/?p=5368Please note that entries for the 2015 Diversity Immigrant Visa Program (DV) (also known as the “green card lottery”) must be submitted electronically by noon, Eastern Daylight Time, Saturday, 2 November 2013. Applicants must submit Form DS-5501, the Electronic Diversity Visa Entry Form found here, during the registration period. There is no fee to make this

]]>Please note that entries for the 2015 Diversity Immigrant Visa Program (DV) (also known as the “green card lottery”) must be submitted electronically by noon, Eastern Daylight Time, Saturday, 2 November 2013. Applicants must submit Form DS-5501, the Electronic Diversity Visa Entry Form found here, during the registration period. There is no fee to make this submission, and each applicant can submit only one entry. The results from the random drawing will be available in the spring of 2014. Instructions for completing a DV-2015 Lottery Application can be found here.

]]>Immigration Newsletterhttps://www.hlregulation.com/2013/07/29/immigration-newsletter/
Mon, 29 Jul 2013 15:17:13 +0000http://www.hlregulation.com/?p=4824This update discusses recent developments in immigration law from the U.S. Departments of Homeland Security, State, and Labor, and additional related matters. Department of Homeland Security USCIS improves E-Verify’s direct notification capability U.S. Citizenship and Immigration Services (USCIS) recently announced a new enhancement to the E-Verify System that will allow USCIS to directly notify employees

]]>This update discusses recent developments in immigration law from the U.S. Departments of Homeland Security, State, and Labor, and additional related matters.

Department of Homeland Security

USCIS improves E-Verify’s direct notification capability

U.S. Citizenship and Immigration Services (USCIS) recently announced a new enhancement to the E-Verify System that will allow USCIS to directly notify employees of an information mismatch within the E-Verify system. E-Verify is an Internet-based system that compares information from an employee’s Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility. The Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States, and was recently revised to allow employees to voluntarily provide their e-mail address. The existing practice in cases of an information or record mismatch that must be resolved before an employee may be confirmed for employment was to issue a Tentative Nonconfirmation (TNC) to the employer, who must then contact the employee. TNCs generally are issued when an employer provides employee information to E-Verify that does not match the data found within the U.S. Department of Homeland Security or Social Administration records.

As a result of the latest USCIS customer service enhancement, if an employee provides his or her e-mail address on the Form I-9, E-Verify will now directly notify the employee of the TNC at the same time the employer is notified. Additionally, the new enhancement will allow E-Verify to send reminder e-mails to employees if no action has been taken to resolve the TNC within four days of a decision to contest, and to notify the employee about the need to update the data found within the U.S. Department of Homeland Security or Social Administration records.

On February 22, 2012, USCIS Director Alejandro Mayorkas announced the launch of the Entrepreneur in Residence Initiative (EIR). This initiative consisted of establishing a team of private sector entrepreneurs and USCIS staff who would work together to streamline and clarify the several visa pathways available to foreign entrepreneurs and to create specialized training for USCIS staff. As part of that process, the EIR team launched in January 2013 Entrepreneur Pathways, a website devoted to educating applicants and employers about the various visa opportunities available to entrepreneurs.

The highlight of the Entrepreneur Pathways website is its “Getting Started” tool. This feature explains step-by-step the considerations that should inform applicants and employers as they decide which visa program is right for them. The “Getting Started” tool has an easy-to-use and attractive format that collects all necessary information in one spot. Access Entrepreneur Pathways by clicking here. This website can also be accessed from the USCIS homepage by clicking on “Resources for Entrepreneurs.”

1-94 Card changes

On April 30, 2013, U.S. Customs and Border Protection (CBP) began implementing its plan to automate the Form I-94, Arrival/Departure Record. Paper I-94 forms will no longer be issued to visa holders arriving to the United States via air or sea ports. Passports will be stamped with the date of arrival and authorized period of stay but if the arriving visa holder needs a paper I-94 (e.g., for employment verification purposes for those who are admitted in work authorized status), he/she will be able to print it out from CBP’s website at www.cbp.gov/i94. CBP has confirmed that all US airports have now transitioned to the paperless I-94.

The American Immigration Lawyer’s Association has received reports that errors have occurred in the new on-line I-94 retrieval system, including errors in name/status, expiration date/category, or no information available at all. Nonimmigrant aliens should be sure to check the CBP’s on-line system (www.cbp.gov/i94) to verify their I-94 information after each arrival to the United States. Please contact us as soon as possible if there is an error in your information in the CBP system.

While there is no requirement that a nonimmigrant alien access and print out a record of admission in order to prove lawful admission and maintenance of status in the U.S., accessing and printing a record of admission should be a routine “best practices” policy. Printing a record of Form I-94 allows an individual to verify admission in the class and for the period of time indicated on the passport stamp. Furthermore, having a paper printout may facilitate applications for ancillary benefits, such as a driver’s license or a Social Security number.

Number of applicants for DACA lagging

In its first year, only 58% of those estimated eligible for the Deferred Action for Childhood Arrivals (DACA) have applied. The Obama Administration’s “deferred action” program was announced on June 15, 2012.

The DACA offers a two-year renewable deferral of removal action and a grant of employment authorization to qualifying immigrants, brought to the United States as youths. In order to qualify, individuals must:

Be under the age of 31 on June 15, 2012;

Have come to the United States before the age of 16;

Have continuously resided in the United States since June 15, 2007;

Currently be in school, have graduated or obtained a GED, or have been honorably discharged from the U.S. Coast Guard or Armed Forces;

Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors.

The U.S. Citizenship and Immigration Services (USCIS) has reported that 539,128 applications were received through May, 2013. These applications account for only 58% of those 936,933 immigrants estimated by the Immigration Policy Center to be immediately eligible for DACA. This number has been attributed by some to the high cost of the application process, ongoing political negotiations over wider immigration reform, and insufficient access to legal advice.

Department of State

August 2013 visa bulletin

The Department of State (DOS) has released its Visa Bulletin outlining the availability of immigrant visa numbers for August 2013.

In the family-based preference categories visa numbers are available as follows:

In the employment-based preference categories, visa numbers remain current and available for all nationalities in the categories of: first preference, fourth preference, certain religious workers, fifth preference, targeted employment areas/regional centers, and 5th Pilot programs. For other categories, visa numbers are available as follows, with a significant advance movement in the 2nd preference category for India:

Department of Labor

LCA and labor certification data made public by the Department of Labor

The Department of Labor (DOL) has created the Labor Certification Registry (LCR) in order to provide redacted copies of H-1B, H-1B1, E-3, H-2A, H-2B and permanent labor certification documents previously issued by Employment and Training Administration (ETA) Office of the Office of the Foreign Labor Certification’s (OFLC). The iCert Visa Portal System, available at http://icert.doleta.gov, is part of DOL’s Open Government Initiative and provides a level of transparency for labor certification decisions. These decisions, along with quarterly and annual case disclosure data, became accessible to the public to review and analyze on July 1, 2013.

Other

Immigration implications of the Supreme Court’s DOMA ruling

In United States v. Windsor, the Supreme Court invalidated a section of the Defense of Marriage Act (DOMA) – which defined marriage as a union between a man and a woman – as unconstitutional. DOMA’s definition of marriage prevented same-sex couples from taking advantage of immigration benefits, but now same-sex couples will receive the same benefits as heterosexual couples. Janet Napolitano, Secretary of the Department of Homeland Security, commented on the ruling, saying, “[ E ]ffective immediately, I have directed U.S. Citizenship and Immigration Services to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

The Supreme Court’s ruling applies to several provisions of the Immigration and Nationality Act, including sections 101(a)(15)(K) (fiancé and fiancée visas), 203 and 204 (immigrant visa petitions), 207 and 208 (refugee and asylee derivative status), 212 (inadmissibility and waivers of inadmissibility), 237 (removability and waivers of removability), 240A (cancellation of removal), and 245 (adjustment of status).

Companies should be aware of these new immigration benefits for same-sex couples, even if their business resides in a state that does not recognize same-sex marriage. Same-sex couples are legally married for the purposes of immigration law if the marriage took place in a U.S. state or foreign country that recognizes same-sex marriage, regardless of the couple’s current place of residence. For example, an employee who legally married his or her same-sex spouse under Massachusetts law can apply for immigration benefits for his or her spouse, even if the employee resides and works in Pennsylvania, which does not recognize same-sex marriage. California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington, and the District of Columbia have legalized same-sex marriage.

Employees in same-sex marriages may qualify for several immigration benefits. For example, an employee that is a U.S. citizen or permanent resident may petition for marriage-based immigration for his or her same-sex spouse. USCIS has not issued specific guidance regarding whether or how the Supreme Court’s decision in DOMA will affect non-immigrant derivative visas.

]]>On June 27, 2013, the Senate passed a comprehensive immigration reform bill to overhaul the U.S. immigration system and extend legal status to millions of undocumented immigrants, expand legal immigration, and increase border security. The Senate voted 68-32 in favor of final passage of S.744, the “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.” The bill received strong support in the Senate following weeks of amendments by the Senate Judiciary Committee and bipartisan negotiations in the Senate. The amended bill retains many of the significant provisions included within the original legislation, which was introduced on April 17, 2013, and summarized in our client alert on April 23, 2013. Despite receiving strong support in the Senate, the bill must still undergo approval by the Republican-led House, where it is expected to face much greater resistance. It is also possible that the House would introduce its own bill with different provisions, which would have to be reconciled with the Senate bill, if it were to pass the House.

]]>New I-9 Form Releasedhttps://www.hlregulation.com/2013/03/20/new-i-9-form-released/
Wed, 20 Mar 2013 20:49:52 +0000http://www.hlregulation.com/?p=4231U.S. Citizenship and Immigration Services (“USCIS” has revised its Employment Eligibility Verification form, Form I-9, which all U.S. employers are required to use to verify the identity and employment authorization status of their employees (or re-verify the continued eligibility of those existing employees whose work authorization expires on a specific date). USCIS notice was published in

]]>U.S. Citizenship and Immigration Services (“USCIS” has revised its Employment Eligibility Verification form, Form I-9, which all U.S. employers are required to use to verify the identity and employment authorization status of their employees (or re-verify the continued eligibility of those existing employees whose work authorization expires on a specific date). USCIS notice was published in the Federal Register on March 8, 2013.

The revisions contain formatting changes and additional data fields, both aimed at minimizing errors in form completion. The form is now two pages in length (not including instructions), with a revised layout. The form’s instructions have been modified, and data fields such as employee’s foreign passport information, telephone number, and email address have been added.

Use of the new form is mandatory. Recognizing that businesses may require time to adjust their operations, particularly electronic processing, USCIS announced a 60 day period during which businesses may use previous versions of the form before they are required to use the updated form. As of May 7, 2013, the older versions of the form will not be accepted.

]]>H-1B quota likely to be exhausted on (or shortly after) April 1, 2013https://www.hlregulation.com/2013/03/20/h-1b-quota-likely-to-be-exhausted-on-or-shortly-after-april-1-2013/
Wed, 20 Mar 2013 13:23:54 +0000http://www.hlregulation.com/?p=4225U.S. Citizenship and Immigration Services (“USCIS”) has announced on Friday, March 15, that it expects to receive a large number of H-1B petitions subject to the fiscal year (“FY”) 2014 quota (also known as the “cap”) on April 1, 2013, the first date upon which USCIS will accept such H-1B petitions for FY 2014 (for

]]>U.S. Citizenship and Immigration Services (“USCIS”) has announced on Friday, March 15, that it expects to receive a large number of H-1B petitions subject to the fiscal year (“FY”) 2014 quota (also known as the “cap”) on April 1, 2013, the first date upon which USCIS will accept such H-1B petitions for FY 2014 (for employment with October 1, 2013 as the effective start date). The numerical limitation on H-1B petitions for FY 2014 is 65,000 under the “regular” cap (with certain visas specifically set aside for nationals of Chile and Singapore under respective free trade agreements). In addition, there are 20,000 H-1B visas available for individuals with U.S. master’s degree or higher (the so-called “master’s” cap). We note that individuals with U.S.-awarded advanced degrees can qualify either under the master’s cap or the regular cap, assuming there is availability. USCIS anticipates that it may receive more than 65,000 cap-subject H-1B petitions and more than 20,000 petitions filed on behalf of individuals with a U.S. master’s degree or higher between April 1, 2013, and April 5, 2013. USCIS will monitor the number of petitions received and notify the public of the date on which the numerical limit of the H-1B cap has been met.

Should the number of applications received in the initial five day period (April 1, 2013 – April 5, 2013) exceed these allocated amounts, USCIS will, similar to its practice in the past, use a lottery system to randomly select the petitions that will be processed under the cap (up to the number required to reach the numerical limit under each of the caps). USCIS will reject petitions that are subject to the cap and are not selected in the lottery system, as well as petitions received after it has the necessary number of petitions needed to meet the cap. This could be the first time since April 2008 that the H-1B cap will require a random drawing/lottery due to high demand for H-1B visas.

USCIS also noted that H-1B cap-subject cases can continue to request “premium processing” (expedited review) services. However, due to the historic premium processing receipt levels, combined with the possibility that the H-1B cap will be met in the first five business days of the filing season, USCIS has temporarily adjusted its current premium processing practice. To facilitate the prioritized data entry of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases on April 15, 2013 (even if a specific case is filed on April 1, 2013). Petitioners may also upgrade a pending H-1B cap-subject petition to premium processing once a receipt notice is issued. All requests for premium processing received between April 1, 2013, and April 14, 2013 will be adjudicated within 15 days from April 15, 2013, when premium processing begins for these cap-subject cases.